R. v. Leung
Between Her Majesty the Queen, and
Kay Y. Leung
Kay Y. Leung
[2011] O.J. No. 3691
2011 ONCJ 400
Ontario Court of Justice
L.T. Feldman J.
Heard: June 3, July 4, 28, 2011.
Judgment: July 28, 2011.
Ontario Court of Justice
L.T. Feldman J.
Heard: June 3, July 4, 28, 2011.
Judgment: July 28, 2011.
(48 paras.)
2 In December of 2009, Mr. Leung lived alone in a newly renovated home in Scarborough owned by his parents who resided in Hong Kong. The defendant was a student at Seneca College. He was supported by his parents. His relationship with them was tumultuous. He told police they put a lot of pressure on him to succeed.
3 His parents' plan was to retire soon and move to Canada to live in the house with their son. Mr. Leung did not want this to happen as for a number of years he had enjoyed social and financial freedom that would be diminished were his parents to move here.
4 On December 22, the Leungs arrived for a 10-day visit. The defendant felt the pressure and anxiety associated with their expectations and began thinking of ways to get them to leave Canada.
5 On Dec 23, after dinner with his girlfriend, Mr. Leung purchased a can and filled it with gasoline. He went home and left the can in the garage, then entered the house and said goodnight to his parents who were sleeping in the main floor bedroom. He went downstairs to his own self-contained living space.
6 Around 3 a.m. the next morning, the defendant took a butane lighter with him and retrieved the gas can from the garage. He poured out half its contents onto the carpet outside the door where his parents were sleeping and put the gas can down about a meter away. He then lit the carpet with the lighter and ran downstairs to his room.
7 Fortuitously, the accused's father had woken up and gone to the bathroom. When he was returning to bed he discovered the fire. When Mr. Leung heard his parents' screams, he came back upstairs, feigning surprise. He called 911 at his father's direction. Mr. Leung's father managed to put out the fire, but not before some significant property damage was done. Cleanup and repair totalling $6403.00 was paid out privately.
8 Emergency services personnel came to the house and transported the accused's parents to the hospital. Both of them suffered smoke inhalation and the father, in addition, sustained second-degree burns to his hands from touching the door knob when leaving his room.
9 The defendant denied having started the fire and told the emergency personnel he believed unknown persons had broken into the home and set it, although he admitted having purchased the gas can, he claimed, in anticipation of obtaining a snow blower. On January 6, 2010, he again denied involvement in the arson in a formal statement to the authorities.
10 Police doubted the veracity of his story and asked him to submit to a polygraph examination. Mr. Leung agreed. On January 14, he failed the test.
11 In a post-test interview, Mr. Leung admitted having started the fire in response to the negative feelings he had about his parents and their controlling behaviour. He said he only meant to scare them so that they would leave the country.
12 On January 15, the defendant apologized to his father in an email. He said he didn't mean to hurt him or his mother but was responding to the frustration of feeling that his life was being controlled by them. He also expressed remorse for his behaviour to his girlfriend in a text message and, as well, confirmed his involvement in a subsequent videotaped statement to the police.
13 Following his arrest, and prior to being released on bail, Mr. Leung served 7 days of pre-trial custody.
Background Information
14 Mr. Leung was born and raised in Hong Kong. His parents are hardworking and successful. The defendant was an indifferent student. As a result, in 2000, he was sent to a private school in Canada north of Toronto with little notice. He subsequently graduated from high school and was encouraged by his parents to study engineering at the University of Toronto where he had been accepted.
15 Mr. Leung did poorly in his studies and dropped out after his first year but did not tell his parents for fear of their anger and because of his own humiliation. He indulged in drinking and socializing and lied to his parents about his irresponsible lifestyle.
16 Unknown to his parents, Mr. Leung also began gambling in 2008. He obtained a line of credit on the house that while owned by his parents had been put in his name and used it to support his lifestyle. While he relied on some of this money to maintain this and other family properties here, he estimates he spent more than $250,000 over the years on drinking, gambling and funding his social life. He eventually converted this debt into a mortgage on the property.
17 When his mother found out about her son's aimless behaviour, deceptions and secret life she travelled to Canada to "straighten him out". Mr. Leung later entered Seneca College in International Accounting and Finance. He has now graduated and will seek employment here or, if he is unable to obtain Canadian residency as a result of these proceedings, in Hong Kong, where his father will assist him in finding work.
18 Since being charged, Mr. Leung has attended 32 weekly sessions with Dr. Timothy Quek, a cognitive behavioural therapist. His parents have also been involved in counselling with their son. Dr. Quek believes the defendant was suffering from depression and anxiety and that "cognitive distortions likely led to his actions which were felt to be characterized more by compulsion than premeditation".
19 The defendant has accepted responsibility for his behaviour and apologized to his parents. He has gained insight into his distorted thinking and worked hard at school. His remorse appears to be sincere.
20 Mr. Leung's parents, who had in the past been less involved in their son's life, believe they are getting closer as a family, although they remain cautious in trusting the defendant. They still hope to retire to Canada.
21 Dr. Julian Gojer, a respected forensic psychiatrist, reviewed the materials in this case and conducted a clinical assessment of the defendant. He is of the view that Mr. Leung's personality at the time of the offence was one of immaturity, egocentricity along with low self esteem and resentment of his parents. He believes the defendant is settled now and that there is no evidence of any personality disturbances. His self esteem appears to have been addressed in therapy.
22 Dr. Gojer views the defendant's actions at the time of the offences as a "reflection of immaturity and unresolved negative attitudes towards his parents". He sees Mr. Leung's positive performance in counselling, remorse and change in his attitude as further support for the conclusion, derived from psychological testing, that he is not a psychopath. Additional testing indicates he is at low risk to reoffend.
23 Dr. Gojer concludes: "Clinically he has made great strides in therapy, shows excellent insight into the dynamics of his offending and has made a positive attitudinal change towards how he views his parents. Overall his risk to offend in a criminal manner is very low. He is remorseful, no longer blames his parents and is striving to be a responsible adult and good son. I do not see him as a risk to his parents."
24 Dr. Gojer recommends the defendant continue in therapy for the next year to consolidate the gains he has made.
25 Given the effort made by the accused in submitting to intensive counselling as part of rehabilitation and family reconciliation and the positive reports tendered on his behalf, the Crown has fairly agreed to stay the more serious mischief charge permitting the court greater discretion in imposing sentence.
Position of the Parties
26 Mr. Medeiros, for the Crown, submits that the seriousness of this offence, its high moral blameworthiness and its aggravating circumstances, particularly the likelihood of it causing danger to the parents' lives, requires a custodial term, a position he says is clear on the authorities. While the Crown concedes a conditional sentence is within an appropriate sentencing range, he submits that imposing a conditional discharge, sought by the defence, would reflect an error in principle.
27 Mr. Penny, for the accused, suggests the facts here are unique in that Mr. Leung's behaviour was rooted in immaturity and naivety and that it is significant this youthful first offender initiated early resolution and a rehabilitative process that included his parents as part of family reconciliation. He submits, as well, that jeopardy to the defendant's immigration status, particularly in light of his parents' wish to retire in this country, is a factor among others favouring a conditional discharge.
28 In remarks to the court, Mr. Leung demonstrated contrition and insight in expressing shame for the betrayal of his parents and expressed the hope to rebuild his relationship with them while becoming a better person.
The Authorities
Mischief to Property by Fire
29 The serious nature of this offence, reflected in jeopardy to the lives of innocent persons and fire fighters, requires the imposition of a deterrent and denunciatory sentence: R. v. Mirzakhalili, [2009] O.J. No. 5464 (Ont. C.A.). In fact, in serious arson offences, even a conditional sentence has been held to be inappropriate: R. v. Hirnschall (2003), 176 C.C.C. (3d) 311 (Ont. C.A.); R. v. Fox, [2002] O.J. No. 2496 (Ont. C.A.).
30 In R. v. Sharpe, [2008] A.J. No. 424 (Alta. Prov. Ct.), the accused, after a night of drinking, accidentally set fire to a mattress which caused her spouse serious injuries. Although the consequences were unintended and the court recognized here a diminished degree of moral blameworthiness, a 20-month conditional sentence order was imposed because of the gravity of the offence.
(b) Risk of Deportation as a Factor in Sentencing
31 The authorities indicate that the sentencing process should not be used to circumvent the provisions of the Immigration and Refugee Act: R. v. B.R.C. (2010), 259 C.C.C. (3d) 27 (Ont. C.A.). In B.R.C., Sharpe J.A. observed that as sentencing is not an exact science, where there is a range of possible sentences, the fact that an offender will face deportation under one possibility "is one of the factors which is to be taken into consideration ... in conjunction with all of the other circumstances of the case" in choosing the appropriate sentence and tailoring the sentence to fit the crime; see also R. v. Melo (1975), 26 C.C.C. (2d) 510 (Ont. C.A.).
32 Put another way, while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range: R. v. Multani, [2010] O.J. No. 1748 (Ont. C.A.).
33 In R. v. Daskalov, [2011] B.C.J. No. 6223 (B.C.C.A.), the accused entered Canada on a fraudulent passport. At trial, a conditional discharge was imposed to minimize the risk to his future admissibility into this country. The sentence was varied on appeal to one day's imprisonment, in part, given the absence of exceptional or unique circumstances. Smith J.A. held, at para 43, that the moral culpability of the offending conduct was significant and that a sentence outside the range of appropriate sentences imposed in order to circumvent the policy goals of the [immigration] legislation, although consistent with the best interests of the accused, was inconsistent with the public interest.
(c) Is the Granting of a Conditional Discharge in the Public Interest?
34 One of the hurdles for the defendant is the court's obligation to give appropriate weight to the statutory principles of general deterrence and denunciation set out in Code s. 718. These principles have particular resonance here given the potential endangerment to the lives of family members and others by the defendant's criminal act. At the same time there are no closed categories of offences for imposing discharges: R. v. Hartsgrove, [2005] O.J. No. 5819 (Ont. C.A.), endorsing [2004] O.J. No. 6071 (Ont. C.J.); R. v. Mitchell, [2007] O.J. No. 163 (Ont. S.C.).
35 As a foreign national, Mr. Leung, upon conviction, would be rendered inadmissible on grounds of criminality under s. 36(2) of the Immigration and Refugee Protection Act. While a discharge would not make him admissible, it would provide the opportunity for him to justify to the immigration authorities why he should be allowed to stay or be admitted. In R. v. N.H., [1994] O.J. No. 1694 (Ont. C.J.), Justice R. Bigelow noted that in granting a discharge where a parent had assaulted her child, the court was not interfering with the discretion of the immigration authorities. Rather, the court recognized that those authorities had an independent discretion to be exercised as they saw fit.
36 The defence fairly concedes that the aggravating features in this case may render the granting of a discharge to be contrary to the public interest as described in Code s. 730. The risk to life, the breach of trust, the need for general deterrence and denunciation and the fact that a jail term is within the appropriate sentencing range are problematic in this regard for the defendant.
37 However, Mr. Penney submits that the mitigating factors are substantial, indicate the existence of exceptional circumstances and weigh in favour of serious consideration of the discharge provisions. He cites the early guilty plea, genuine remorse and surrendering to this process without prior commitment on sentence from the prosecution or assurance that the most serious charge would be stayed, active participation in 60 sessions of assessment, treatment and counselling to gain insight, overcome distorted thinking and change his behaviour for the better, the involvement of the defendant's parents in part of the counselling process to facilitate family reconciliation and the serving of 7 days of pre-trial custody.
38 There is some support in the authorities for this exceptional result. In R. v. Meneses (1974), 25 C.C.C. (2d) 115 (Ont. C.A.), Dubin J.A. indicated that deterrence to others must give way when other considerations are more paramount and when the broad view of the public interest is considered. This was later reinforced by Justice Ratushny in R. v. Dinelle, [2001] O.J. No. 1692 (Ont. S.C.), in a case of domestic assault, where the court held that a conditional discharge is capable of serving the objectives of general deterrence. As well, in R. v. Cope, [2009] O.J. No. 5702 (Ont. C.J.), where the accused was found guilty of assaulting his wife on two discrete occasions, one in a sexual context, Krelove J. observed, at para. 22, that deterrence can be achieved by recognition that the defendant has been arrested, gone through the court process, spent time in pre-trial custody and made subject to a lengthy period of probation with significant terms.
39 Of importance, as well, is the notion that the public interest is served by the application of restorative justice principles in an effort to promote, in appropriate cases, family reintegration. In R. v. M.G., [2007] O.J. No. 5590 (Ont. C.J.), where the adult accused abused his trust and sexually interfered with a young person, Nakatsuru J. was persuaded that it was in the public interest in that case to allow the healing process within this family a better chance to succeed in a manner that paid more than lip service to the concept of restorative justice.
40 Similarly, in R. v. P.C., [2006] O.J. No. 5746 (Ont. C.J.), in a case where the defendant pled guilty to the unlawful touching of his step-daughter, Hawke J. noted the extraordinary efforts by the defendant to support his own rehabilitation and that of his step-daughter and to reunite his family, and found it not to be contrary to the public interest to grant a conditional discharge. In N.H., Bigelow J. was of the view, as well, in granting a discharge in that case, that the public has an interest in the unification of families.
41 Finally, of assistance is an example of the application of restorative justice principles in R. v. Braun, [2006] B.C.J. No. 3409 (B.C. Prov. Ct). There, the 18-year old native youth entered a guilty plea to Mischief over $5000 for starting a fire in an old cedar farm shed which set alight the adjacent barn. The defendant came forward and admitted to the act and the fact it was her idea. She was a good student, her remorse was considered genuine, she participated in a sentencing circle and her victims supported the granting of a discharge.
42 In all these cases, the importance of rehabilitation and other relevant factors in combination in the circumstances of each case overcame the predominance of both deterrence and denunciation in the sentencing analysis. That is not this case.
Conclusion
43 This offence is serious, given the potential dire consequences, and would require exceptional circumstances to overcome the importance here of both deterrence and denunciation. What is aggravating, in particular, is the selfish intent of the defendant to recklessly perpetrate a dangerous act in order to frighten his parents into leaving him alone in Canada so that he might continue his aimless and indolent life style. In fact, Dr. Gojer describes Mr. Leung as immature and egocentric with low self esteem, likely a result, in part, of his parents leaving him alone in Canada for so many years without adequate parental attachment, guidance and control. His naivety was apparent in setting the fire and then returning downstairs to his own bedroom incomprehensibly devoid of awareness that he was placing his own and that of his parents' lives at risk by his foolish act. I view the defendant's moral blameworthiness in that context. These are sympathetic, but not exceptional, circumstances.
44 At the same time, having accepted responsibility, and submitted to this process without prior assurances, the defendant has made an extraordinary effort to gain the necessary insight through intensive psychotherapy that can address his personal deficits, promote family reconciliation and achieve meaningful rehabilitation. He has worked hard. I accept Dr. Gojer's opinion that Mr. Leung has matured, gained valuable insight and is at low risk to reoffend. He has now graduated and can seek employment here or in Hong Kong, although his parents hope to retire to Canada and have their son with them.
45 On all the evidence, I consider the defendant's criminal act to reflect aberrant behaviour. Fortunately the consequences were not more serious. As well, in the circumstances, I acknowledge the substantial effort and progress made by Mr. Leung and believe it important to encourage that personal growth and allow for continuing family reconciliation.
46 As a result, on these unique facts, including strong evidence of rehabilitative progress by a relatively young first offender with a supportive family, I do not consider it contrary to sentencing principles to impose a non-custodial term.
47 However, given the paramount nature of both general deterrence and denunciation for this serious offence, the potential risk to life and the moral culpability attendant upon it, I am not persuaded that it would not be contrary to the the public interest to grant a discharge. To do so would, in my view, take this disposition out of an appropriate range in a manner that gave disproportionate weight to immigration considerations, however sympathetic in the circumstances, and, contrary to authority, diminish other more significant principles of sentencing.
48 The defendant will be given a suspended sentence plus probation for two years on terms to be discussed with counsel. The terms will include the following: keep the peace and be of good behaviour; report immediately and thereafter as required; for the first 12 months of this order continuing counselling with Dr. Timothy Quek or as directed by probation services; sign any releases that will permit probation services to monitor your compliance.
L.T. FELDMAN J.
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